One major problem with e-mail is that it feels less formal and less personal, which tricks many people into writing things that they would never say. E-mail is not an excuse to fly off the handle; be sure to moderate your thoughts.

E-mails are a written record—good and bad

E-mails between opposing counsel tend to appear in discovery motions, fee petitions, and even Rule 11 motions. Regardless of whether you think you are right or wrong, e-mails are self-explanatory evidence.

For example, during a phone call with opposing counsel they screamed, called you names, and acted generally unprofessional. In response, you typed out a emotional e-mail detailing why you hate working with them. Even if your e-mail was 25% as bad as what they said, that e-mail will show up in a motion. You can always submit an affidavit, but an e-mail is a written record—there is no arguing about what it says.

E-mails are easy to misinterpret

My sense of humor is rather dry and sarcastic—which never translates well to e-mail. Conveying the right tone can be a tricky thing to do over e-mail. When you combine that with already contentious relationship between opposing parties, that can be a recipe for disaster.

If you receive an e-mail that sends you into a tizzy, do not send an immediate response. Let it be and come back to it later. Many times, you are simply misreading an e-mail. When you read it later, it does not seem nearly as offensive.

Be clear and concise in your e-mails. To the best of your ability, avoid using emotional words or trying to imply or incite a emotional response. Otherwise, you might find some that some of your choice words are attached to an affidavit and part of the public record.

If by “e-mail stationery” you mean using graphics in e-mails to mimic your paper stationery, I’d say skip it. It rarely comes off well, and it mostly gunks up correspondence. It’s one thing if you are sending an e-mail newsletter. It’s quite another if you are actually trying to correspond with someone.

I agree with most of the advice in this posting and have a suggestion of my own… attorneys should focus on “controlling the conversation” from the first email and nip any tangent in the bud, in other words keep it short. There are few things less inefficient than using a 100 emails to explain what you could have in a 5 minutes over the phone. Firms should save their swagger and best strategies for their filings and court appearances and return to the element of surprise. Firms that seem reserved in terms of the extent of their written communications are often seen as more prudent than opposing counsel. Email facilitates impulsive behavior, and the best ones understand that. The less you say the better are you off in the long run. I have to agree with you however that it is best to keep messages simple and never emotional.